Tactay Danitas Tubog v. Torture Claims Appeal Board and Another

CAMP 434/2021

[2022] HKCA 406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 434 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1733 OF 2019)

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Before:  Hon Kwan VP and Chu JA in Court

Date of Written Submission:  20 October 2021

Date of Judgment:  25 March 2022

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.On 2 June 2021, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection[1].

2.On 29 June 2021, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file her appeal ended on 16 June 2021. On 28 September 2021, DHCJ Chan dismissed the applicant’s summons for extension of time to appeal against the said decision as there is no prospect of success in the intended appeal[2].

3.On 6 October 2021, the applicant filed a renewed application in the Court of Appeal for extension of time to appeal.

4.The applicant is a national of the Philippines and is 45 years old. She came to Hong Kong to work as a foreign domestic helper on 27 November 2011. Her employment contract was terminated on 27 November 2013 and she subsequently overstayed. On 17 June 2016, she surrendered to the Immigration Department and raised a non-refoulement claim. Her claim was made on the basis that if she returned to the Philippines she would be harmed or killed by her husband and/or his creditor for failing to repay his loan borrowed on her behalf.

The Director’s Decision

5.By a Notice of Decision dated 21 February 2018, the Director rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.In the decision, the Director assessed that the level of risk of harm from her husband or his creditor upon her return to the Philippines was low. Her problems with her husband or his creditor being a private domestic or monetary dispute without any official involvement, state/police protection would be available to the applicant if resorted to. Further, based on reliable and objective Country of Origin Information (“COI”), reasonable internal relocation alternatives were available.

The Board’s Decision

7.On 2 March 2018, the applicant appealed against the Director’s decision to the Board. She attended an oral hearing before the Board on 21 February 2019. On 18 June 2019, the Board dismissed the appeal and affirmed the Director’s decision.

8.In the decision, the Board found that the applicant’s claim for fear of harm from her husband and his creditor over the loan was doubtful. In any event, it was a private monetary dispute without any official involvement. State/police protection and internal relocation options were available to her. Her claim for non-refoulement protection failed on all applicable grounds.

The intended judicial review

9.On 24 June 2019, the applicant filed a Form 86 and an affidavit for leave to apply for judicial review against the decisions of the Director and the Board. No grounds for seeking relief were given in her Form 86. In her supporting affidavit, she merely stated that the decisions disregarded her dangerous situation in her home country, without particulars or elaboration. No proper grounds were put forward for her intended challenge.

10.On 2 July 2020, the applicant filed an affidavit requesting to withdraw her leave application. Her reason was that she wanted to go back to her home country because of her medical condition. On 23 July 2020, DHCJ Bruno Chan granted her request and ordered that her application for leave to apply for judicial review be withdrawn.

11.However, on 11 March 2021, she filed another affirmation requesting to be allowed to proceed with her application as her problem had not been resolved and hence she did not want to return to her home country.

The judge’s decision

12.DHCJ Chan allowed the applicant to proceed with her application, considering that the merits of her application had never been dealt with and in order to save time and costs.

13.In his decision dated 2 June 2021 ([2021] HKCFI 1579), DHCJ Chan noted that the applicant had not put forth any proper ground for seeking relief and did not appear at the hearing without any explanation. Having considered the decisions of both the Director and the Board, the judge held there was no error of law or procedural unfairness in the decisions of both the Director and the Board, and there had been no failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim. He concluded that there was no prospect of success in the applicant’s intended application, and refused her leave application.

Grounds of intended appeal

14.The applicant did not provide any grounds of appeal in her summons or affidavit both dated 6 October 2021. She only stated in her summons that: “The High Court dismissed [her] extension of time to appeal. [she] want[s] to appeal.”

15.In her written submissions dated 20 October 2021, she stated that she did not receive DHCJ Chan’s decision refusing her leave application. She also reiterated that her problem was very serious and that she could not return to her home country. She pleaded for the court to extend time for her appeal.

Analysis and disposition

16.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

17.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 2 June 2021. The applicant took out a summons for extension of time to appeal against that order at the court below on 29 June 2021. She was late for 13 days.

18.The applicant explained to the judge at the hearing of her extension of time application that she did not receive the decision in the mail, and the time for appeal had already expired by the time she was informed of the decision by the immigration officer. DHCJ Chan was not convinced by her explanation as the court record showed that the decision was sent on the same day to the applicant’s last reported address without being returned through undelivered post.

19.In the written submissions in support of her present application, the applicant repeated the explanation that she did not receive DHCJ Chan’s decision. Her bare assertion is hardly convincing in the absence of any evidence and for the reasons given by the judge as mentioned above.

20.In any event, even if the court is minded to accept this explanation for the delay, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is crucial in this application (Re Gurung Min Bahadur [2018] HKCA 226 at §10).

21.In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

22.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

23.In the present case, the applicant did not put forward any reasonably arguable grounds of appeal. The judge at the court below provided well-founded reasons for his decision. The applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

24.For the above reasons, there is no prospect of success in the applicant’s intended appeal. We therefore refuse to grant an extension of time to appeal and dismiss the summons for leave to appeal out of time filed on 6 October 2021.

The Applicant, acting in person